State v. Jackson

Decision Date24 April 1997
Docket NumberNo. 950696-CA,950696-CA
Citation937 P.2d 545
Parties315 Utah Adv. Rep. 26 STATE of Utah, Plaintiff and Appellee, v. Brent JACKSON, Raquel Nielsen, and Patricia E. Smith, Defendants and Appellants.
CourtUtah Court of Appeals

Thomas H. Means, Provo, for Appellants.

Jan Graham, Christine F. Soltis, Salt Lake City, and James R. Taylor, Provo, for Appellee.

Before BENCH, JACKSON and ORME, JJ.

ORME, Judge:

Defendants appeal their convictions for possession of marijuana in a drug-free zone and possession of drug paraphernalia in a drug-free zone, both class A misdemeanors. They contend the trial court erred in denying their motion to suppress evidence which they claim was seized in violation of their state constitutional rights. Because we hold that article I, section 14 of the Utah Constitution does not prohibit the warrantless search and seizure of garbage left for streetside collection, we affirm.

FACTS

In the early morning hours of June 8, 1994, Sergeant Jerry Harper of the Provo Police Department went to the home of defendant Patricia Smith and obtained two garbage cans that were sitting at the side of the street in front of her home. The garbage cans were provided by Provo City and marked with the house number in white stenciled writing, thus indicating to Officer Harper that the garbage cans facilitated garbage removal for those residing at the home, including defendant Smith; her companion, defendant Brent Jackson; and her daughter, defendant Raquel Nielsen. Officer Harper removed the two cans from the curb and took them to the Provo Police Department where the contents of the cans were inspected.

As a result of his search of both garbage cans, Officer Harper found evidence of illegal drug use and possession, including marijuana stems and seeds, a marijuana cigarette, a small amount of marijuana indicative of personal use, and "Zig-Zag" papers used for rolling marijuana cigarettes. These items were found inside a garbage can containing, among other items, a utility bill in the name of defendant Jackson and a phone bill in the names of both Jackson and Smith.

On the basis of this and other information, the police sought a search warrant for defendants' home that same day. In addition to setting forth the results of the garbage search, the affidavit in support of the search warrant included two prior incidents involving the defendants and drug-related activity. One such incident occurred on April 13, 1994, when several unidentified men entered defendants' home without permission and held defendants captive for several hours demanding drugs and money. Nothing in the affidavit indicated why the men thought they would find drugs there or whether drugs were actually obtained by the intruders. 1

The second incident occurred on May 3, 1994, when defendant Smith pleaded guilty to possession of marijuana and possession of drug paraphernalia, which occurred in January 1993 at a third party's residence in Orem.

The requested warrant was issued and executed on June 8, 1994. Based upon the evidence of drugs and drug paraphernalia found during this search of their residence, defendants were charged with various drug-related felonies and class A misdemeanors. Defendants jointly moved to suppress the evidence obtained from the search, which motion was denied. Defendants then entered conditional guilty pleas to class A misdemeanor possession of marijuana and class A misdemeanor possession of drug paraphernalia, both in a drug-free zone, with each defendant reserving the right to challenge the trial court's ruling on the earlier suppression motion. On October 10, 1995, all defendants were sentenced on each count to one year in jail and a $2500 fine, but the sentences were suspended pending successful completion of thirty-six months probation. This appeal followed.

ISSUES

Defendants raise two issues on appeal: (1) whether the affidavit in support of the search warrant was sufficient to support the magistrate's determination of probable cause and (2) whether article I, section 14 of the Utah Constitution prohibits the warrantless search of a citizen's garbage left for curbside collection.

STANDARDS OF REVIEW

Our review of the affidavit in support of the search warrant focuses on whether the "magistrate had a substantial basis for concluding that there were enough facts within the affidavit to find that probable cause existed." State v. Collard, 810 P.2d 884, 885 (Utah.Ct.App.), cert. denied, 817 P.2d 327 (Utah 1991). Accordingly, we review the affidavit in " ' "its entirety and in a common sense fashion," ' " according deference to the magistrate's determination. State v. Thurman, 846 P.2d 1256, 1260 (Utah 1993) (citations omitted).

The trial court's determination that article I, section 14 of the Utah Constitution does not recognize a reasonable expectation of privacy in a Utah citizen's garbage left for collection outside the curtilage of a home presents a question of law, which we review for correctness. State v. Anderson, 910 P.2d 1229, 1232 (Utah 1996).

SUFFICIENCY OF THE AFFIDAVIT

Defendants list a number of reasons why the affidavit was insufficient to support the magistrate's determination of probable cause, most of which relate to whether the factual information in the affidavit was stale or irrelevant. Primarily because we do not view bits and pieces of the factual information contained in the affidavit in isolation, but rather view the affidavit in its totality, we are not persuaded by defendants' arguments.

Officer Harper's affidavit contains twelve paragraphs. In essence, these twelve paragraphs set forth information regarding (1) the affiant's training and qualifications as a police officer in recognizing narcotics and the related paraphernalia, (2) the past drug activity of defendants, (3) Provo's garbage collection system, (4) the search of defendants' garbage cans, and (5) the resulting evidence from the garbage search. Taken together, this information establishes an adequate basis on which the magistrate could find probable cause to believe that drugs and/or drug paraphernalia would be found in the residence.

Defendants argue that the facts set forth in the affidavit fail to dispel the possibility that the contraband was placed in the garbage cans by strangers or neighbors while the cans sat at the curb. Paragraph seven of the affidavit, however, states that Officer Harper found the contraband amongst garbage that included a utility bill in the name of defendant Jackson and a phone bill in the names of both Jackson and Smith. This fact tends to suggest that the marijuana came from inside defendants' home, and was discarded by defendants, along with other refuse from the home, rather than by some unknown passer-by or neighbor.

Defendants also argue that the affidavit failed to indicate when the containers were taken to the street, arguing that the contraband could have been in defendants' garbage can for weeks or months before defendants took the garbage to the curb for collection. Defendants argue that this potential staleness seriously undercuts the magistrate's determination of probable cause. Viewing it in a common sense fashion, however, the affidavit sufficiently dispels any substantial possibility of staleness in this regard. Although the affidavit does not state the specific day of the week when the city's garbage collectors were scheduled to dispose of the garbage at the residence, the magistrate could fairly infer, given the fact of weekly collection, that the contraband had not been lying around for longer than one week. Such potential lapse of time was not significant enough to bar the magistrate from concluding there was probable cause to believe that drugs would be found inside defendants' home. See State v. Thurman, 846 P.2d 1256, 1260 (Utah 1993) ("The concern [with stale information] is whether so much time has passed that there is no longer probable cause to believe that the evidence is still at the targeted locale.").

Defendants also argue that the April 1994 forced break-in incident and the prior criminal conviction of defendant Smith constitute stale and irrelevant information, which should not have been considered by the magistrate in making his probable cause determination. We largely agree with defendants in this respect. However, we are persuaded that the magistrate would have found probable cause even absent any information about the April 1994 incident and Smith's prior conviction. Thus, defendants' staleness argument, even if well-taken, is not dispositive. We therefore conclude that the affidavit contained sufficient facts to support the magistrate's determination of probable cause.

STATE CONSTITUTIONAL ISSUE

Defendants concede that under the Fourth Amendment to the federal constitution, a person has no reasonable expectation of privacy in one's garbage set out for collection on the street, outside the curtilage of a home, and thus no Fourth Amendment right to be free from the search of such garbage by law enforcement personnel. See California v. Greenwood, 486 U.S. 35, 39-41, 108 S.Ct. 1625, 1628-29, 100 L.Ed.2d 30 (1988). Nonetheless, defendants argue that we may find greater protection of individual rights under our state constitution than is provided by the federal constitution. They urge us to give a more expansive interpretation of article I, section 14 of the Utah Constitution, which parallels the Fourth Amendment to the federal constitution. 2

Initially, we commend defendants' counsel in "heed[ing] the call" by Utah's appellate courts "to more fully brief and argue the applicability of the state constitution." State v. Bobo, 803 P.2d 1268, 1272 (Utah.Ct.App.1990). Counsel's appellate brief and related oral argument on this issue were thorough and scholarly, and contained the kind of analysis that Bobo noted might be helpful in making an argument for an innovative interpretation of the Utah Constitution. See id. at 1272-73 n. 5. However, despite co...

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  • State v. Wright
    • United States
    • Iowa Supreme Court
    • 18 Junio 2021
    ...an unlawful search and seizure because defendant "had no reasonable expectation of privacy in discarded trash"); State v. Jackson , 937 P.2d 545, 550 (Utah Ct. App. 1997) (holding that "the Utah Constitution does not prohibit the warrantless search" of garbage left streetside for collection......
  • State v. Granville
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    • Court of Appeals of New Mexico
    • 9 Junio 2006
    ...constitution did not prohibit warrantless searches because an expectation of privacy was not objectively reasonable); State v. Jackson, 937 P.2d 545, 546 (Utah Ct.App.1997) ("[T]he Utah Constitution does not prohibit the warrantless search and seizure of garbage left for streetside collecti......
  • State v. Womack
    • United States
    • Utah Court of Appeals
    • 22 Octubre 1998
    ...basis for concluding that there were enough facts within the affidavit to find that probable cause existed.' " State v. Jackson, 937 P.2d 545, 547 (Utah Ct.App.) (quoting State v. Collard, 810 P.2d 884, 885 (Utah Ct.App.1991)), cert. granted, 945 P.2d 1118 (Utah 1997). We therefore review t......
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    • 18 Julio 2014
    ...constitutional standards not designed to walk in lockstep with “uncertain and fluctuating federal standards”); State v. Jackson, 937 P.2d 545, 550 (Utah Ct.App.1997) (noting two Utah Supreme Court departures from United States Supreme Court search and seizure precedent, done for purpose of ......
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1 books & journal articles
  • Utah Standards of Appellate Review – Revised [1]
    • United States
    • Utah State Bar Utah Bar Journal No. 12-8, October 1999
    • Invalid date
    ...recognizes "a reasonable expectation of privacy in ... garbage left for collection outside the cartilage of a home___" State v. Jackson, 937 P.2d 545, 547 (Utah Ct. App. 1997), cert, granted, 945 P.2d 1118 (Utah 1997). (40) "Whether a statement is offered for the truth of the matter asserte......

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